Navajo Nation V Reagan - Motion For Tro Memorandum PDF

Case 3:18-cv-08329-DWL Document 2-1 Filed 11/20/18 Page 1 of 17
1 Patty A. Ferguson-Bohnee (SBN 020996)

Patty.Ferguson@SacksTierney.com
2 Judith M. Dworkin (SBN 010849)
Judith.Dworkin@SacksTierney.com
3 Joe Keene (SBN 032623)
Joe.Keene@SacksTierney.com
4 SACKS TIERNEY P.A.
4250 N. Drinkwater Blvd., 4th Floor
5 Scottsdale, AZ 85251-3693
Telephone: 480.425.2600
6
Ethel B. Branch (No. 026717)
7 ebranch@nndoj.org
Paul Spruhan (No. 02513)
8 pspruhan@nndoj.org
Navajo Nation Dept. of Justice
9 P.O. Drawer 2010
Window Rock, Arizona 86515
10 Telephone: (928) 871-6210
Facsimile: (928) 871-6177
11 Attorneys for Plaintiffs
P.A., ATTORNEYS
12
4250 NORTH DRINKWATER BOULEVARD
IN THE UNITED STATES DISTRICT COURT

SCOTTSDALE, ARIZONA 85251-3693
13
FOR THE DISTRICT OF ARIZONA
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14
SACKS TIERNEY
The Navajo Nation, a federally recognized No.

15 Indian Tribe; Joyce Nez, an individual;
Denise Johnson, an individual; Ashley Atene,
16 Sr., an individual; Irene Roy, an individual; PLAINTIFFS’ MEMORANDUM OF
Bonnie Tsosie, an individual; and Dale Smith POINTS AND AUTHORITIES IN
17 an individual, SUPPORT OF EMERGENCY
Plaintiffs, MOTION FOR TEMPORARY
18 RESTRAINING ORDER
v.
19
Michele Reagan, in her official capacity as
20 Secretary of State for the State of Arizona;
Edison J. Wauneka, in his official capacity as
21 Apache County Recorder; Angela Romero in
her official capacity as Apache County
22 Elections Director; Doris Clark in her official
capacity as Navajo County Recorder, Rayleen
23 Richards, in her official capacity as Navajo
County Elections Director; Mark Mayrand in
24 his official capacity as Coconino County
Elections Director; and Patty Hansen, in her
25 official capacity as Coconino County
Recorder,
26
Defendants.
27
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1 I. Introduction
2 Plaintiff Navajo Nation, on its own behalf and on behalf of its members, Joyce Nez,
3 an individual, and Ashley Atene, Sr. an individual (collectively the “Plaintiffs”), under
4 Federal Rule of Civil Procedure 65(b), respectfully ask this Court to enter a temporary
5 restraining order/injunction prohibiting Defendant Michele Reagan, in her official capacity
6 as Secretary of State for the State of Arizona, the County Recorders (Apache, Navajo, and
7 Coconino), and the State’s County Election Directors (Apache, Navajo, and Coconino), and
8 their officers, managers, agents, servants, affiliates, and employees (collectively the
9 “Defendants”), from finalizing the counting of votes until such time as the Plaintiffs and
10 similarly situated Navajo voters whose early ballots were disqualified have the right to cure
11 in this the November 6, 2018 election (“Election”). As the Supreme Court has held, “[n]o
12 right is more precious in a free country than that of having a voice in the election of those
13 who make the laws under which, as good citizens, we must live,” and “[o]ther rights, even
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14 the most basic, are illusory if the right to vote is undermined.” Wesberry v. Sanders, 376
15 U.S. 1, 17–18 (1964). In pursuit of this right, the Navajo Nation requests emergency
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16 injunctive relief which orders the Defendants to allow Navajo voters an opportunity to cure
17 deficiencies in their early ballot and Plaintiffs request this TRO to prevent irreparable harm
18 to Navajo Nation voters wherein they have been denied the fundamental right to have their
19 votes counted.
20 II. Factual Background
21 Six Arizona counties are subject to the Voting Rights Act (“VRA”), Section 203, for
22 Indian languages: Apache, Coconino, Gila, Graham, Navajo, and Pinal and must provide all
23 election materials, including assistance and ballots, in the language of the applicable
24 language minority group. Compl. ¶ 87. This includes the Navajo language in Apache,
1
25 Coconino, and Navajo Counties. Id. “Over 70% of the voting age population on the
26 Reservation speak a language other than English.” Compl. ¶ 2. Despite these facts, no
27
Voting Rights Act Amendments of 2006, Determinations under Section 203, 81 See. Reg.
1
28 87532, 87533 (Dec. 5, 2016).
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1 Navajo translators were provided to give guidance to the Navajo Nation members in the
2 preparation of their early ballots for the Election. Id. The Arizona Election Manual only
3 requires that instructions be given in English and Spanish. Compl. ¶ 89.
4 To prepare for the Election, “on August 8, 2018, Russell Begaye, President of the
5 Navajo Nation, sent requests for additional early voting sites to the recorders of Apache,
6 Coconino and Navajo Counties.” Compl. ¶ 92. “He informed the respective recorders that
7 the Nation would staff the locations and assist in obtaining HAVA [Help America Vote Act]
8 funds for its operations.” Id. “He asked that they respond by August 17, 2018, so that the
9 Navajo Nation could assist the counties.” Id. Establishing early voting sites was vitally
10 important for the Nation, because many Navajo Nation members live in remote regions and
11 it is a financial burden for these members to exercise their votes. See Compl.¶ 29; Compl.,
12 Ex. 4, Johnson Decl. (“We are in a remote area, so it is a financial burden to vote.”); See
13 Compl. ¶ 31; Compl. Ex. 6, Tsosie Decl. (“It is a financial burden for me to travel to
P.A., ATTORNEYS
14 [voting sites] Fort Defiance, Arizona or to Chinle, Arizona.”).

15 “On August 20, 2018, Defendant Patty Hansen sent a memorandum to President
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16 Begaye denying his request for additional early voting sites.” Compl. ¶ 93, Compl. Ex. 10.
17 “She claims that Coconino County recently entered into a settlement agreement with the
18 Department of Justice that requires all early voting sites established after the effective date
19 of the agreement be handicapped accessible.” Id. “The Agreement would allow the County
20 to use current non-compliant facilities for the 2018 elections but prohibited them from
21 establishing any new non-compliant facilities.” Id. “The County did agree to accept
22 assistance from the Navajo Nation in obtaining additional HAVA funding.” Id.
23 “On August 23, 2018, Defendant Secretary of State notified President Begaye that
24 Coconino County Recorder’s statement that the Secretary of State would not make HAVA
25 funding available to enhance their election security was incorrect.” Compl. ¶ 94, Compl.
26 Ex. 11.
27 “On September 10, 2018, Defendant Doris Clark notified the Navajo Nation that its
28 request for additional early voting sites on the Reservation was denied, because of the
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1 County’s interest in ballot security.” Compl. ¶ 95, Compl. Ex. 12. As shown above, the
2 counties denied the Navajo Nation’s request for additional early voting sites. See Bret
3 Healy Declaration (“Healy Decl.”), ¶ 8, attached hereto as Ex. 1.
4 Despite the denial of the early voting sites by the Defendants, Four Directions, a
5 501(c)(4) corporation who works with the Navajo Nation, engaged in early vote efforts on
6 the Navajo Reservation starting on Monday, October 15, 2018. Healy Decl. ¶ 10. The
7 “Apache County early vote offices in Chinle and Fort Defiance were closed each day from
8 noon until 1 PM Navajo Nation time.” Healy Decl. ¶ 11. Four Directions reached out to
9 the Apache County Recorder in an effort to make lunch hours early voting available to
10 Navajo Nation voters, but the Apache County Recorder declined assistance from Four
11 Directions and would not make the lunch hour available except for the last two Fridays at
12 the Fort Defiance location. Healy Decl. ¶ 12-14.
13 “On November 6, 2018, the State of Arizona held its General Election. Over 100
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14 votes cast by members of the Navajo Nation residing in the Counties of Apache, Navajo,
15 and Coconino were not counted, because they did not sign the envelope containing the
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16 early ballot or because the signatures on the envelopes did not match.” Compl. ¶ 2. These
17 Navajo Nation voters were not told that they had to complete the ballot affidavits form on
18 the envelope, and these members thought they had lawfully cast a ballot for the Election.
19 See Compl. ¶ 26; Compl. Ex. 1, Nez Decl (“Nez Decl.”). If these voters had resided in
20 Maricopa County, the officials there would have sent the ballot “back to the voter along
21 with a letter explaining why it was returned and a postage paid envelope for the voter to
22 send it back signed.” See Maricopa County Recorder Website, Frequently Asked Questions,
23 available at https://recorder.maricopa.gov/site/faq.aspx. The Navajo Nation voters never
24 received anything in the mail stating their ballot had a mistake. See Nez Decl. ¶11. In fact,
25 one Navajo Nation member turned in his early ballot at the Kayenta polling place and
26 asked if he was supposed to sign the ballot, and the election official told him “no.” See
27 Compl. ¶27, Compl. Ex. 2, Atene Decl. (“Atene Decl.”) (“I asked at the polling place if I
28 was supposed to sign my ballot and the lady said no.”). Other Arizona voters who had
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1 ballot mistakes were “allowed until November 14, 2018, to correct their errors.” Compl. ¶
2 89. In a lawsuit filed in Maricopa County for voting violations, Maricopa County
3 Republican Party v. Michele Reagan, et al., CV2018-013963, the Superior Court issued an
4 Order that stated that County Recorder Defendants must permit voters to “cure early ballots
5 until 5:00 p.m. on Wednesday, November 14, 2018.” Order, attached hereto as Ex. 2. This
6 Order apparently did not cover the Tribal Members who properly filled out the ballot but
7 failed to sign the envelope as Four Directions worker Jennifer Crow was specifically told
8 Navajo Nation members who did not sign their envelopes could not cure their ballots. See
9 Ex. 1 at Jennifer Crow Declaration (“Crow Decl.”) ¶ 25.
10 To illustrate the barriers that Navajo Nation members faced in trying to cure their
11 ballots and the utter confusion that these members faced, an encounter with the Apache
12 County Recorder’s Office shortly after the Election is worth describing. “Four Directions
13 learned that voters in Apache County would only have until 5:00 PM on Friday, November
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14 9, 2018 to cure ballots . . . .” Healy Decl. ¶ 15. Four Directions learned that voters who
15 wanted to cure should call 928-337-7515. Id. Four Directions then informed their team
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16 leaders to reach out to Navajo Nation members whose votes were not counted and urged
17 these members to call the 7515 number in order to cure their ballot. Id. Navajo Nation
18 members called the 7515 number and no one ever picked up the phone, the phone would
19 just “ring and ring.” Healy Decl. ¶ 16.
20 On Friday, November 9, 2018, Navajo Nation worker Donna Semans went to the
21 Apache County Recorder’s Office to request help in allowing Navajo Nation members to
22 cure their early votes. See Ex. 1 at Donna Semans Declaration (“Semans Decl.”) ¶ 6. To her
23 surprise, the Apache County Recorder’s Office was closed on this day, and Donna called
24 the Recorder’s Office for 45 minutes before finally speaking with someone from this office.
25 Semans Decl. ¶ 7. A lady named Geneva, the Registration Supervisor, finally spoke with
26 Donna and Donna asked Geneva how the Navajo Nation members could get their votes
27 cured. Semans Decl. ¶ 14. Geneva stated that the members could just call her. Semans
28 Decl. ¶ 15. Donna told Geneva that she had contacted 13 Navajo Nation members who had
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1 vote discrepancies with their ballots and these people had tried to call but no one answered
2 the phone. Semans Decl. ¶ 16. Geneva asked Donna what number she had the 13 people
3 call, and Donna said the number she had been told to call, the 7515 number. Semans Decl.
4 ¶ 20. Geneva then asked Donna who told her that information, and said that information
5 did not come from her office. Semans Decl. ¶ 21. Donna told Geneva she wanted to speak
6 with someone in person and Geneva said she’d send her Chief Deputy Recorder to meet
7 with Donna in 20 minutes. Semans Decl. ¶ 22. The Chief Deputy Recorder never showed
8 up. Semans Decl. ¶ 23. Apache County officials did not meet with Donna until November
9 13, 2018, when she finally secured “the list of voters needing assistance to cure their
10 ballots.” Semans Decl. ¶ 26.
11 As shown above, not only did Navajo Nation members never receive any
12 notifications that their early ballots had mistakes, but Defendants created obstacles to the
13 Plaintiffs’ efforts to cure. The Defendants’ failure to allow Navajo Nation members to cure
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14 their ballots, deprived Plaintiffs of their opportunity to cast an early ballot compared to
15 other Arizona citizens. See Compl. ¶ 109. The denial of the ability of the Navajo Nation
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16 members to vote in the Election compared to other Arizona citizens denied the Navajo
17 Nation members equal protection under the law.
18 III. Legal Standard
19 Immediate injunctive relief is appropriate here because Plaintiffs can establish all
20 four requisite factors this court must consider. See Winter v. Nat. Res. Def. Council, Inc.,
21 555 U.S. 7 (2008). Injunctive relief under Fed. Civ. P. 65(b) is appropriate where Plaintiff
22 can establish that it:
23 (1) is likely to succeed on the merits; (2) is likely to suffer irreparable
harm in the absence of preliminary relief; (3) that the balance of equities tips in
24 its favor; and (4) that an injunction is in the public interest.
25 Winter, 555 U.S. at 20.
26 For the reasons described below, Plaintiffs meet the Winter standard.
27
28
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1 IV. Argument
2 a. Plaintiff is likely to succeed on the merits.
3 “Voting is a fundamental right subject to equal protection guarantees under the
4 Fourteenth Amendment.” Idaho Coal. United for Bears v. Cenarrusa, 342 F.3d 1073, 1076
5 (9th Cir. 2003) “There is no right more basic in our democracy than the right to participate
6 in electing our political leaders.” McCutcheon v. Fed. Election Comm'n, 572 U.S. 185, 191
7 (2014). Indeed, the right “to exercise the franchise in a free and unimpaired manner is
8 preservative of other basic civil and political rights, [and] any alleged infringement of the
9 right of citizens to vote must be carefully and meticulously scrutinized. Reynolds v. Sims,
10 377 U.S. 533, 562 (1964). Like the United States Constitution, the Arizona Constitution,
11 Art. 2, § 21, provides for equal protection under the law for voting and states that “[a]ll
12 elections shall be free and equal, and no power, civil or military, shall at any time interfere
13 to prevent the free exercise of the right of suffrage.”
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14 The Supreme Court holds that the Constitution protects not only the right to vote,
15 but also the counting of the votes. “It has been repeatedly recognized that all qualified
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16 voters have a constitutionally protected right to vote . . . and to have their votes counted.”
17 Reynolds v. Sims, 377 U.S. 533, 554 (1964) (internal citation omitted) (emphasis added).
18 “The right to vote includes the right to have one’s vote counted on equal terms with
19 others.” League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 476 (6th Cir. 2008).
20 And the Supreme Court holds that the process of counting votes is important and a State
21 may not value certain voters over others. The Supreme Court notes:
22 The right to vote is protected in more than the initial allocation of the
franchise. Equal protection applies as well to the manner of its exercise.
23 Having once granted the right to vote on equal terms, the State may not, by
later arbitrary and disparate treatment, value one person's vote over that of
24 another.
25 Bush v. Gore, 531 U.S. 98, 104–05 (2000). “An individual’s right to vote . . .is
26 unconstitutionally impaired when its weight is in a substantial fashion diluted when
27 compared with votes of citizens living on other parts of the State.’ Reynolds v. Sims, 377
28 U.S. 533, 568 (1964).
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1 Here, the Navajo Nation members’ right to vote and have their vote counted was
2 “unconstitutionally impaired” by the Defendants who (1) refused to open early voting sites
3 on the vast Reservation; (2) refused to provide translators proficient in the Navajo language
4 to assist Navajo Nation members with their early voting; (3) refused to count early voting
5 ballots by Navajo Nation members because the envelopes for the ballots were not signed or
6 mismatched; and (4) did not allow Navajo Nation members the ability to cure their ballots
7 like other Arizona citizens. Plaintiffs have shown with concrete evidence from the
8 Plaintiffs’ declarations that Navajo Nation members’ votes were not being counted, See
9 Nez Decl. ¶ 9; Atene Decl. ¶ 9, Compl. ¶¶ 26, 27 the Defendants not providing translators
10 to Navajo Nation early voters, See Compl. ¶ 2, the Defendants refusing to open early voting
11 sites on the Reservation, See Healy Decl. ¶ 8, and the lack of an opportunity by Navajo
12 Nation members to cure their ballots. See Nez Decl. ¶ 11-14; Healy Decl. ¶ 23. Thus, the
13 Plaintiff is likely to succeed on the merits of its claims alleging violations of the Fourteenth
P.A., ATTORNEYS
14 Amendment, the First Amendment, 42 U.S.C. 1983, the VRA, and the Arizona
15 Constitution. A granting of a temporary restraining order is warranted. See Obama for Am.
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16 v. Husted, 697 F.3d 423, 436 (6th Cir. 2012) (“When a party seeks a preliminary injunction
17 on the basis of a potential constitutional violation, the likelihood of success on the merits
18 often will be the determinative factor.”) (internal quotations omitted).
19 i. Plaintiffs are likely to prevail on their VRA claims because
Defendants violated Section 2 of the VRA, by providing “less
20 opportunity” for Navajo Nation members to vote, as compared to
others.
21
The VRA states that “[n]o voting qualification or prerequisite to voting or standard,
22
practice, or procedure shall be imposed or applied by any State or political subdivision in a
23
manner which results in a denial or abridgement of the right of any citizen of the United
24
States to vote on account of race or color . . . .” 52 U.S.C. § 10301(a). The VRA also
25
protects people who are “member[s] of a language minority group.” 52 U.S.C.
26
§ 10303(f)(2). Indians are recognized as a language minority group under the VRA and are
27
a protected class under the VRA. Section 4(f)(4) of the VRA provides in relevant part:
28
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1 Whenever any State of political subdivision [subject to the

bilingual electoral requirements] . . . provides any registration or
2 voting notices, forms, instructions, assistance, or other materials
or information relating to the electoral process, including ballots,
3 it shall provide them in the language of the applicable language
minority group as well as in the English language.
4
5 52 U.S.C. § 10303(f)(4). Section 2 of the VRA provides that it is a violation of the VRA if,
6 based on the totality of circumstances, it is shown that the

political processes leading to nomination or election in the State
7 or political subdivision are not equally open to participation by
members of a class of citizens protected by subsection (a) in that
8 its members have less opportunity than other members of the
electorate to participate in the political process and to elect
9 representatives of their choice.
10 52 U.S.C. § 10301(b) (emphasis added).

11 The Supreme Court holds that the crucial question in a Section 2 claim “is whether
12 the use of a contested electoral practice or structure results in members of a protected group
13 having less opportunity than other members of the electorate to participate in the political
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14 process and to elect representatives of their choice.” Thornburg v. Gingles, 478 U.S. 30, 63
15 (1986) (emphasis added).
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16 The Defendants’ actions have violated Section 2 of the VRA because they have
17 created “less opportunity” for Navajo Nation members’ to have their votes be counted than
18 “other members of the electorate.” The Defendants’ failure to provide translators proficient
19 in the Navajo language, a violation of VRA § 4(f)(4), which lead to the errors in the early
20 voting process and failure to allow Navajo Nation members’ the ability to cure deficiencies
21 with their ballots, created hardships for the Navajo Nation members and effectively denied
22 them the equal right to vote afforded to other Arizona citizens.
23 As shown in the Complaint, the Defendants never provided translators to Navajo
24 Nation members who exercised their early voting rights, despite 70% of the population
25 speaking a language other than English. See Compl. ¶ 2. A language minority group is a
26 protected class under the VRA and the Defendants had an obligation to provide translators
27 and materials in the Navajo language. See VRA, 52 U.S.C. § 10303(f)(4) (the state “shall
28 provide [election forms] in the language of the applicable language minority group as well
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1 as in the English language.”). Federal courts hold that “Section 2 claims may be brought to
2 challenge election officials’ failure to provide language assistance.” United States v. Berks
3 Cty., Pennsylvania, 277 F. Supp. 2d 570, 581 (E.D. Pa. 2003).
4 The limited early voting sites on the Reservation reduced the opportunities of
5 Navajo Nation members to remedy any early ballot voting problems. See Compl. Ex. 12,
6 Navajo County Early Voting Sites; Coconino County Early Voting Sites attached as Ex. 3;
7 Apache County Recorder’s Office Early Voting attached hereto as Ex. 4. The lack of early
8 voting sites created additional hardship for early voters to cure any mistakes Navajo Nation
9 members made when early voting. See Compl. ¶ 12. Furthermore, the few early voting
10 sites that were available only stayed open for a limited time. See Smith Decl. ¶ 14-16
11 (stating the Kayenta early location was open only 10 hours total, Holbrook’s early location
12 was open for 162 hours total, and there was no in person voter registration office at the
13 Kayenta location for the last 30 days before the close of voter registration for the Election.).
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14 As Justice Scalia has stated, if “a county permitted voter registration for only three hours
15 one day a week, and that made it more difficult for blacks to register than whites, blacks
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16 would have less opportunity ‘to participate in the political process’ than whites, and §2
17 would therefore be violated.” Chisom v. Roemer, 501 U.S. 380, 408 (1991) (Scalia, J.,
18 dissenting) (emphasis in original).
19 The lack of communication by Defendants to Navajo Nation members that there
20 were problems with their ballots effectively disenfranchised Navajo Nation voters. As
21 Navajo Nation member Joyce Nez stated, “I was never advised by county officials that
22 there were problems with my ballot.” Nez Decl. ¶ 11. This treatment is unlike voters in
23 Maricopa County wherein the officials there would send back the ballot “to the voter along
24 with a letter explaining why it was returned and a postage paid envelope for the voter to
25 send it back signed.” See Maricopa County Recorder Website, FAQ.
26 Navajo Nation members were also treated differently immediately after the election
27 in attempting to cure the deficiencies with their ballots. Donna Semans, a Four Directions
28 worker, attempted to acquire help from the Apache County Recorder’s Office to cure
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1 ballots on Friday, November 9, 2018, only to find the Recorder’s Office closed. Semans
2 Decl. 7. Then when she finally spoke with a supervisor, this supervisor gave her no help at
3 all by having her wait for a person that never showed up. See Semans Decl. ¶ 23 (I “waited
4 to meet with the chief deputy recorder, but no one came out to meet with me nor contacted
5 me in any way.”). Other Arizona County Recorder Offices were open on Friday and
6 actively helped voters remedy any ballot issues.
7 As shown above, the disparate treatment of early voting activity for the Navajo
8 Nation compared to the electorate at large violates Section 2 of the VRA and is
9 unconstitutional.
10 ii. Plaintiffs are likely to prevail on their Equal Protection claims
because the Defendants engaged in “disparate treatment” of
11 Navajo Nation voters.
12 The Supreme Court holds that the right to vote is “implicit in our constitutional
13 system” and grants the Plaintiffs the right “to participate in state elections on an equal basis
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14 with other qualified voters.” San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 36 n.
15 78 (1973). The Supreme Court notes that the equal protection clause “applies as well to the
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16 manner of its [voting’s] exercise. Having once granted the right to vote on equal terms, the
17 State may not, by later arbitrary and disparate treatment, value one person's vote over
18 that of another.” Bush v. Gore, 531 U.S. 98, 104–05 (2000).
19 The Defendants’ actions disadvantaged Navajo Nation members and did not allow
20 them the same opportunities to cast their ballots as other Arizona citizens. As shown
21 above, the Defendants refused to open early voting sites on the Reservation, refused to
22 provide Navajo language translators with early voting, and refused to provide an
23 opportunity to cure irregularities in the early ballots. In contrast, Arizona citizens in
24 Maricopa County were allowed to mail in a new ballot if they did not sign their original
25 early ballot. Over 100 Navajo Nation members’ ballots were uncounted because the
26 envelope was not signed or their signatures on their ballots were mismatched. See Compl. ¶
27 2.
28
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1 iii. Plaintiffs are likely to prevail on their Equal Protection claims

because the Defendants imposed an “undue burden” on Navajo
2 Nation voters by not opening early voting sites, requiring them to
sign the ballot envelope, and imposing obstacles on the ability to
3 cure a ballot.
4 The Defendants’ actions to impose obstacles to cure irregularities in the early ballot,
5 such as the Friday, November 9 closure of the Apache County Recorder’s Office, violate
6 the Plaintiffs’ constitutional rights. When a State imposes a burden on the right to vote, this
7 Court must weigh:
8 [1] the character and magnitude of the asserted injury to the
rights protected by the First and Fourteenth Amendments that the
9 plaintiff seeks to vindicate’ against [2] the precise interests put
forward by the State as justifications for the burden imposed by
10 its rule, taking into consideration [3] the extent to which those
interests make it necessary to burden the plaintiff's rights.
11
12 Democratic Nat'l Comm. v. Reagan, 904 F.3d 686, 702–03 (9th Cir. 2018) (quoting
13 Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)). In evaluating the severity of the
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14 burden, “courts may consider not only a given law's impact on the electorate in general, but
15 also its impact on subgroups, for whom the burden, when considered in context, may be
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16 more severe.” Pub. Integrity All., Inc. v. City of Tucson, 836 F.3d 1019, 1024 n. 2 (9th Cir.
17 2016), cert. denied sub nom. Pub. Integrity All., Inc. v. City of Tucson, Ariz., 137 S. Ct.
18 1331, 197 L. Ed. 2d 518 (2017).
19 First, the the court considers “whether the law has a heavier impact on subgroups,”
20 if the “plaintiff adduces evidence sufficient to show the size of the subgroup and quantify
21 how the subgroup's special characteristics makes the election law more burdensome.”
22 Democratic Nat'l Comm. v. Reagan, 904 F.3d 686, 703 (9th Cir. 2018). Plaintiffs have
23 provided significant evidence that Navajo Nation voters are not as proficient in the English
24 language as other voters and therefore may require explanation regarding the need for the
25 signature on the early voting envelope in which the ballot is placed. Over 70% of the
26 population on the Navajo reservation speaks a language other an English, See Compl. ¶ 2,
27 and “over 18% of individuals over the age of five speak English less than very well.”
28 Compl. ¶ 88. Because Navajo Nation voters do not understand English as well as the voting
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1 electorate at large, they were more likely to fail to understand the exact procedures for
2 submitting an early ballot, more likely to submit the ballot without signing the envelope.
3 The lack of translators at early voting locations and Defendants’ failure to notify Navajo
4 Nation voters that their early ballots were deficient, See Nez Decl. ¶ 11, and the limited
5 times and locations to cure the deficiencies are evidence of Plaintiffs’ injury in trying to
6 exercise their voting franchise. As shown in the declarations submitted, the Navajo Nation
7 did not receive the list of voters whose ballots would be counted for Apache County until
8 Tuesday, November 13, 2018. See Semans Decl. ¶ 26.
9 Second, the court considers whether the State’s justifications is sufficient to burden
10 the plaintiff's rights. Democratic Nat'l Comm. v. Reagan, 904 F.3d 686, 703 (9th Cir.
11 2018). This step “involves a balancing and means-end fit framework . . . the severity of the
12 burden dictates the closeness of the fit required, and the more severe the burden, the more
13 compelling the state's interest must be.” Id. While Arizona has a strong interest in
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14 preserving the integrity of its elections and has “the power to impose voter qualifications,”
15 Dunn v. Blumstein, 405 U.S. 330, 336 (1972), the Navajo Nation members have a
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16 “fundamental political right” to vote. Dunn v. Blumstein, 405 U.S. 330, 336 (1972)).
17 Furthermore, the “burden” imposed by Arizona here has to be considered within the
18 subgroup of the Native Americans, including Navajo Members, who have faced decades of
19 discrimination in voting which means any limitation placed on voting “may be more
20 severe.” Pub. Integrity All., Inc. v. City of Tucson, 836 F.3d 1019, 1024 n. 2 (9th Cir.
21 2016), cert. denied sub nom. Pub. Integrity All., Inc. v. City of Tuczon, Ariz., 137 S. Ct.
22 1331, 197 L. Ed. 2d 518 (2017). The State’s justification for refusing to open early voting
23 sites staffed with Navajo translators and the failure to assist Navajo voters in curing
24 irregularities on their ballots, pales in comparison with the “fundamental right” of Navajo
25 Nation members to vote and have their votes counted. As of this filing, the State of Arizona
26 is continuing to count thousands of votes and Arizona law allows the canvassing or
27 verifying of votes up to twenty days past an election. See A.R.S. § 16-642 (“The governing
28 body holding an election shall meet and canvass the election not less than six days nor
13
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1 more than twenty days following the election.”). Requiring the Defendants to extend the
2 time for Navajo voters to cure irregularities and for the Defendants to count the additional
3 Navajo Nation members’ votes poses little burden on the Defendants and does not impose
4 any substantial costs.
5
b. Absent a restraining order, Plaintiff will suffer irreparable harm by not
6 having their votes counted.
7 “It is well established that the deprivation of constitutional rights ‘unquestionably

8 constitutes irreparable injury.’” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)
9 (quoting Elrod v. Burns, 427 U.S. 347, 37 (1976)); See also Obama for Am. v. Husted, 697
10 F.3d 423, 436 (6th Cir. 2012) (“A restriction on the fundamental right to vote therefore
11 constitutes irreparable injury.”). This Court holds that “it is clear that abridgement of
12 the right to vote constitutes irreparable injury. “Arizona Democratic Party v. Arizona
13 Republican Party, No. CV-16-03752-PHX-JJT, 2016 WL 8669978, at *11 (D. Ariz. Nov.
P.A., ATTORNEYS
14 4, 2016). “Because there can be no ‘do-over’ or redress of a denial of the right to vote after
15 an election, denial of that right weighs heavily in determining whether plaintiffs would be
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16 irreparably harmed absent an injunction.” Fish v. Kobach, 840 F.3d 710, 752 (10th Cir.
17 2016).
18 As shown in the Complaint and the declarations submitted, over 100 Navajo Nation
19 members’ votes “were not counted” because they did not sign the outside envelope of their
20 ballot or their early ballots had a mismatch of signatures. See Compl. ¶ 80. These Navajo
21 Nation members cannot redress this mistake and exercise their voting franchise absent
22 injunctive relief by this Court. The denial of the right to vote by Defendants constitutes
23 irreparable injury to the Navajo Nation members which warrants the issuance of injunctive
24 relief.
25 c. The balance of equities tips in Plaintiff’s favor.
26 “A State indisputably has a compelling interest in preserving the integrity of its
27 election process.” Purcell v. Gonzalez, 549 U.S. 1, 4, 127 S. Ct. 5, 7, 166 L. Ed. 2d 1
28 (2006). But because Arizona is still counting votes in many precincts, any harm from
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2269162.v3
1 having to tally additional Navajo Nation member votes is de minimis. See A.R.S. §16-642
2 (“The governing body holding an election shall meet and canvass the election not less than
3 six days nor more than twenty days following the election.”).The Supreme Court is clear
4 that “[c]ountering the State's compelling interest in preventing voter fraud is the plaintiffs'
5 strong interest in exercising the ‘fundamental political right’ to vote.” Purcell v. Gonzalez,
6 549 U.S. 1, 4, 127 S. Ct. 5, 7, 166 L. Ed. 2d 1 (2006) (quoting Dunn v. Blumstein, 405 U.S.
7 330, 336 (1972)).
8 Here, the balance of equities tips strongly in favor the Navajo Nation members
9 because these members are exercising their “fundamental political right to vote.” Indeed,
10 currently in Apache County, for Ganado School Board #20, there is only a three vote
11 difference between the potential candidates for school board. See Apache County Website,
12 2018 Midterm Unofficial Election Results, available at
13 https://www.co.apache.az.us/elections/apache-county-2018-election-results/. Thus, the
P.A., ATTORNEYS
14 ability of Navajo Nation members to participate in the selection of their political leaders by
15 having their votes counted is of vital importance and outweighs the harms suffered by the
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16 State. See McCutcheon v. Fed. Election Comm'n, 572 U.S. 185, 191 (2014) (“There is no
17 right more basic in our democracy than the right to participate in electing our political
18 leaders.”).
19 d. Public interest.
20 The Ninth Circuit Court of Appeals holds that “it is always in the public interest to
21 prevent the violation of a party's constitutional rights.” Melendres v. Arpaio, 695 F.3d 990,
22 1002 (9th Cir. 2012)(quoting Sammartano v. First Judicial District Court, 303 F.3d 959,
23 974 (9th Cir. 2002)). As shown above, the Plaintiffs have brought this suit seeking
24 injunctive relief to exercise their constitutional right to vote and have their votes counted.
25 The public interest favors an injunction.
26 V. Conclusion
27 For the foregoing reasons, the Plaintiffs respectfully request that this Court issue a
28 temporary restraining order/injunction ordering Defendants to permit Navajo voters the
15
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1 opportunity to cure the deficiencies in the early ballots and to count the ballots cast in the
2 Election.
3 DATED this 20th day of November, 2018.
4 SACKS TIERNEY P.A.
5
By: s/ Patty A. Ferguson-Bohnee
6 Patty A. Ferguson-Bohnee
7 Judith M. Dworkin
Joe Keene
8
and
9 Ethel B. Branch
10 Paul Spruhan
NAVAJO NATION DEPARTMENT OF JUSTICE
11
Attorneys for the Navajo Nation
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P.A., ATTORNEYS
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1 CERTIFICATE OF SERVICE
2
I hereby certify that on November 20, 2018, I electronically transmitted the
3
foregoing PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN
4
SUPPORT OF EMERGENCY MOTION FOR TEMPORARY RESTRAINING
5
ORDER to the Clerk’s Office using the CM/ECF System for filing.
6
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10 s/ Rebecca C. Urias
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P.A., ATTORNEYS
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SACKS TIERNEY
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2269162.v3

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Case 3:18-cv-08329-DWL Document 2-1 Filed 11/20/18 Page 1 of 17

1 Patty A. Ferguson-Bohnee (SBN 020996)

IN THE UNITED STATES DISTRICT COURT

The Navajo Nation, a federally recognized No.

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14 [voting sites] Fort Defiance, Arizona or to Chinle, Arizona.”).

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1 Whenever any State of political subdivision [subject to the

6 based on the totality of circumstances, it is shown that the

10 52 U.S.C. § 10301(b) (emphasis added).

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1 iii. Plaintiffs are likely to prevail on their Equal Protection claims

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7 “It is well established that the deprivation of constitutional rights ‘unquestionably

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SCOTTSDALE, ARIZONA 85251-3693

SCOTTSDALE, ARIZONA 85251-3693

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